I was reading the comments on this story when it occurred to me that people really don’t understand the constitution. Oh, they know the buzz words, like “innocent until proven guilty” and “freedom of speech”, but they really don’t get it.
Several people commented on their belief that Mark Shurtleff and John Swallow are guilty as hell of unlawful activity during their times as Utah State Attorney General. They were quickly slapped down with the so called constitutional “presumption of innocence” (according to my sources, those words are not actually in the constitution).
Here’s the problem: “Presumption of Innocence” is a judicial tenet, not a requirement of the general public. Courts, judges and juries are required to consider an individual legally innocent until proven guilty. I, as a individual citizen, am not. I’m allowed to, in my own mind, convict anyone of anything on any amount of evidence, or lack thereof, I want to. And I’m even allowed to tell other people that’s what I believe. So, when I say that I think Shurtleff and Swallow are guilty as hell, that I think they will be found guilty in a court and that I hope they get the maximum sentence allowed, don’t tell me I’m violating their constitutional rights. Unless I’m on the jury, I’m not.
The other one I see a lot (from both sides of the political spectrum) is “don’t [pick one: tell them to shut up, call them an idiot or boycott their business], they have a constitutional right to free speech.”
Well, ya they do, but that only applies to the government telling you to shut up. My freedom of speech allows me to let you know I think you’re an idiot and that I think you should just close your mouth before you prove I’m right. (Oh, and you, too, have the right to tell me to shut up before I prove that I’m the idiot you’re calling me.)
Furthermore, businesses are able to restrict the speech of their employees, particularly when it has an effect on their business. Consider the Duck Dynasty debacle. Many people got on A&E’s case when they cancelled the show because of something that one actor said. Screams of infringing on his constitutional right to free speech were all over the place.
Let’s make this easy. If you went to a restaurant and the manager asked “How many are there in your in-bred redneck party tonight?”, would you expect them to keep their job? Or if the server asked “Do you really need that cheesecake, isn’t your ass fat enough already?” When the manager came by, heard that and fired the server, would you demand that they be rehired on the grounds that it infringes on their rights?
It’s pretty simple; in general the constitution was written to limit actions in the public sector, not on the individual citizen scale.
1 comment:
I have been waiting for a while for this conversation. Please allow me to blow off some steam. I have to preface this with the fact that I am a lawyer. I am a corporate lawyer so my recollection of con law is at least 25 years old and probably spotty.
The great and mighty Max is right that there is a difference between the legal right given to us by the US Constitution and the "court" of public opinion.
We are guaranteed the right to free speech. It is in the 1st Amendment to the Constitution which in total says ""Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances."
The US Constitution is the framework for the government of the United States. It is instruction for the legislative, judicial and executive branches of the Government.
The purpose of this framework was to set down the fundamental principals for a new government. The founders of our country (often that is the best place to start when looking at what is meant by something said in the Constitution) knew what they didn't want and they said so in the Declaration of Independence and the Constitution. In part they wanted a place where they could criticize the government and not be put in jail just because of what they said. This doesn't mean we can say what ever we want.
There are always consequences to our actions and freedom of speech is no different. We were taught the "Fire in a Crowded Movie Theater" Concept. You can yell "Fire" in a crowded movie theater but if it isn't true and people are trampled you will be responsible.
Since 1776 there have been many cases on the freedom of speech. In the landmark case Schenck v. United States (249 U.S. 47, 1919) Justice Holmes wrote that "in many places and in ordinary times" Schenck would have had a right to say everything that he said in his pamphlets. However, he said that how far a person's freedom of speech extends depends on the circumstances. "The most stringent protection of free speech," he said, "would not protect a man in falsely shouting fire in a theatre and causing a panic." Justice Holmes compared that circumstance to living in a nation at war. "When a nation is at war," he said, "many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." During war, he thought, the government certainly has the power to prevent obstructions to recruitment. Therefore, it also has the power to punish someone who uses words that are proven to cause such obstructions. "The question in every case," said Holmes, "is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
Like the guy from Duck Dynasty, he has the right to say it but he also has to suffer the consequences. His comments hurt the network and the network decided to take him off the show. His freedom of speech didn't extend to requiring that he keep his job.
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